Producers’ liability for the damage caused by defective products

26 October 2005 (Invest Romania)

We resume with a few considerations in the consumer field on the producers’ liability for the damage caused by the defective products, as this is regulated under the provisions of Law no. 240/2004, published in the Official Gazette no. 552 of June 22nd, 2004 and effective starting one month later (“Law no. 240/2004”).

As of the sanctioning of the referred law, the provisions of the Directive no. 85/374/EEC on the producer’s liability are transposed in the Romanian law, being laid down the legal basis with a view to the provision of a higher degree of protection of the consumer against the damage caused to his health or property by the defective products put to circulation.

Prior of a summary review of the most important provisions of Law no. 240/2004, it is worth mentioning that the transposition in the Romanian law of the provisions of the Directive 85/374/EEC faced a range of obstacles, given that the first attempt of transposition of the community provisions, namely the Government Ordinance no. 87/2000 (“GO no. 87/2000”) on the producers’ liability for the damage caused by the defective products was a failure, the Parliament further repealed the ordinance by Law no. 43/2002.

Law no. 240/2004 regulates the legal relationship between the producers and the persons affected or prejudiced by the use of the defective products, settling the legal regime of the special liability of the producers. The referred normative act does not intend to remove the applicability of the common law provisions specific to the civil liability from this field, but, on the contrary, to set up an additional, special liability of the producers, thus offering the consumers an easier and efficient protection mean in case they suffer a prejudice due to a defective product. Consequently, based on these provisions, the consumers have the discretion to choose between the classic action means, according to the Civil Code and the pleading of the provisions of Law no. 240/2004.

However this requires the clear knowledge of the scope of applicability of the reviewed normative act.

Thus, as concerns the persons who could be held liable, the referred normative act refers only to the producers, but in a broader meaning, being extended both to the participants to the manufacture process including the apparent producers (meaning any person acting as a producer just by affixing his name, trade mark or other distinguishing feature on the product), as well as to the importers of defective products or, in certain conditions, to the suppliers of the respective product.

As concerns the persons entitled to receive compensation, it must be mentioned that this is not limited only to the persons who acquired the defective product but, as a rule, any injured person may plead the law provisions, if they used the goods according to its purpose and for certain personal needs.

The products covered by the law are, mainly, the products destined for consumption, excluding the primary agricultural products, as initially stated by GO no. 87/2000.

The law provisions are applicable only if the suffered damage is a personal injury (death or injury of the corporal integrity or health of a persons), or if the caused damage consists in the destruction or deterioration of property, others than the defective product whose utilization caused the damage. The damage is caused by the product safety default itself, the legal provisions defining the defective products as those which do not provide the safety a person is entitled to expect.

Considering that the persons injured due to the safety defects of the consumption goods put in circulation may obtain the remedy of the damage based only on the provisions of the Civil Code, without recourse to the provisions of Law 240/2004, the natural question is to know which would be the advantages of taking legal action for liability pursuant to this normative act. The answer to this question means the outlining of the objective characteristic of this type of liability. This means that as part of the legal action, the consumer does not need to prove the producer’s fault – the practice demonstrates it as difficult to be attained, but in order to get the due remedy, it would be sufficient to produce the proof of the suffered damage, of the product safety defect and the causal relationship between the defect and the damage.



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